Saturday, March 05, 2005

Leocal plus Booker: drug possession is not an aggravated felony

With the tenfold increase in illegal reentry prosecutions in the past decade, one of the most common, and frustrating, sentencing problems is the treatment of prior convictions for simple possession of drugs under U.S.S.G. § 2L1.2. Under the guidelines, aliens receive an enhancement to offense level 16 for having a conviction that is an "aggravated felony" under the Immigration and Nationality Act’s definitional section, 8 U.S.C. § 1101(a)(43). For immigration purposes, three Circuits reasonably construe section 1101(a)(43)(B) to require an element of trafficking before a drug conviction constitutes an "aggravated felony." But in the sentencing context, most Circuits treat mere possession of the tiniest amount of drugs as a "drug trafficking crime" that requires enhancement as an "aggravated felony." Here come two recent cases from the Supreme Court to the rescue.

In Leocal, the Supreme Court addressed the definition of "aggravated felony" under the INA in deciding whether drunk driving resulting in injury constituted a "crime of violence" under section 1101(a)(43)(A). The Court did two things that undercut the reasoning of the bad sentencing precedent.

First, the Court resorted to the common meaning of "crime of violence" to find that drunk driving was not within the natural or ordinary meaning of that term. Similarly, "drug trafficking crime" -- "naturally" and by its "ordinary meaning" -- does not include simple drug possession. Second, the Court held in footnote 8 that the statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context." The Ninth Circuit must therefore reconcile the different definitions of "drug trafficking crime" (as the predicate for being an "aggravated felony") in the immigration (Cazarez-Gutierrez & Ferreira) and sentencing (Ibarra-Galindo) contexts.

Booker provides important support for resolving the conflict in favor of the alien. The intra- and inter-Circuit split between the "hypothetical federal felony" approach and the "guidelines" approach is summarized and not resolved by the Sixth Circuit in Liao. As set out in the Garcia-Plancarte petition for certiorari here, the statute's plain meaning and the rules of statutory construction strongly support treatment of simple drug possession as outside the definition of "aggravated felony." The rationale for different treatment arises from the claim that national uniformity is necessary in the immigration context but not in the federal sentencing context. One thing both majorities in Booker agreed upon is the overarching congressional intent that defendants with similar backgrounds who commit the same offense should be treated similarly.

The "guidelines" approach typified by Ibarra-Galindo in the Ninth Circuit institutionalizes unwarranted disparity. A defendant convicted of the exact same immigration crime, with a prior conviction with the exact same elements, has an adjusted base level 8 for an Arizona conviction (Robles-Rodriguez), a base level of 16 for an Oregon conviction (Rios-Beltran), and 16 or 8 depending on "wobbler" factors for a California conviction (Fernandez-Cervantes, 13 Fed.Appx. 665 (9th Cir. 2001)). On the other hand, under the "hypothetical federal felony" approach, each defendant would have the same advisory guideline range: a prior conviction for mere possession, which is a misdemeanor under the federal Controlled Substances Act, would never be an "aggravated felony;" a prior conviction that included any of the trafficking and manufacture elements required for federal felonies under the CSA would always be an "aggravated felony."

Leocal and Booker are intervening Supreme Court authority that undercut the reasoning and "mode of analysis" of the split opinion in Ibarra-Galindo. Under the en banc opinion in Miller that frees district courts from such invalid precedent, aliens should no longer receive enhanced sentences based on mere drug possession because the district courts are no longer bound by precedent that defenders have long viewed as irrational and cruel. The Garcia-Plancarte petition is easily adaptable for use in the district courts.